Opinion
22-CV-10571 (SN)
03-04-2024
CHERRY ANN JONES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. Range of Motion June 23, 2021 (Dr. Paz) July 22, 2021 (Dr. Dassa) Aug. 31, 2021 (Dr. Guttman) Feb. 24, 2022 (Dr. Dassa) Range of Motion Normal Range May 11, 2021, through June 21, 2021 June 22, 2021, through Oct. 7,2021 Oct. 12, 2021, through Feb. 8, 2022
OPINION AND ORDER
SARAH NETBURN, United States Magistrate Judge:
Cherry Ann Jones seeks judicial review of the final determination of the Commissioner of Social Security (the “Commissioner”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. See 42 U.S.C. § 405(g). Jones moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Commissioner opposes Jones's motion. Jones's motion is DENIED.
BACKGROUND
I. Administrative History
Jones applied for DIB on February 5, 2021. ECF No. 11, Administrative Record (“R.”) 15. She alleged that she was disabled beginning June 29, 2020, due to various mental health and medical issues, including a rotator cuff injury. Id. at 286, 290. Her application was first denied on September 10, 2021, and then again upon reconsideration on December 29, 2021. Id. at 153, 171. Jones then requested a hearing before an administrative law judge (“ALJ”) to review her case. Id. at 181. Jones appeared before ALJ Eric Eklund for a hearing on June 24, 2022. Id. at 44. On July 18, 2022, the ALJ issued a decision granting Jones's claim for the period between June 29, 2020, and August 31, 2021, and denying Jones's claim for the period between September 1, 2021, and the date of the ALJ's decision. Id. at 14-33. On October 17, 2022, the Appeals Council denied Jones's request for review, making the ALJ's decision final. Id. at 1-3.
II. Jones's Civil Case
Jones filed her complaint on December 14, 2022, seeking review of the ALJ's decision and requesting that the Court either grant her maximum DIB or remand the case for further proceedings. ECF No. 1. The Commissioner answered by filing the administrative record, and Jones moved for judgment on the pleadings. ECF Nos. 11, 17. Jones argues that the ALJ erred by determining her Residual Functional Capacity (“RFC”) using his “own lay opinion of the medical evidence” and by improperly ignoring her hearing testimony. ECF No. 17, Plaintiff's Memorandum of Law (“Pl. Br.”) at 17-18. The Commissioner responds that the ALJ's RFC determination was free from error and was supported by the relevant medical and testimonial evidence. See ECF No. 20, Defendant's Memorandum of Law (“Def. Br”) at 14.
On January 9, 2023, the parties consented to my jurisdiction pursuant to 28 U.S.C. § 636(c). ECF No. 8.
III. Factual Background
Jones's arguments on appeal are limited to the ALJ's determinations about her right shoulder and arm movement. Accordingly, a more detailed summary of the medical record evidence is unwarranted, and the Court adopts the parties' recitations of Jones's medical record evidence.
Jones was born on November 1, 1971, and was 48 years old at the time of the alleged onset of her disability in 2020. R. 286. She has a high school education and has taken some college-level accounting courses. Id. at 49, 296. She is a licensed nursing assistant and has worked as a home health aide. Id. at 50, 291. From August 2008 until June 2020, Jones worked for the New York City Transit Authority (“Transit”). Id. at 291. For Jones's first five years with Transit, she counted the number of riders on City buses. Id. at 67-68. Jones then switched to laminating posters. Id. Her final role with Transit involved posting delay and interruption notices on subway turnstiles. Id. Throughout Jones's 12 years at Transit, she also took extra weekend shifts guiding passengers towards shuttle buses when trains were out of service. Id. at 69.
On June 29, 2020, while putting up posters at work, Jones reached with her right arm and “noticed immediate pain in her right shoulder, neck and upper back.” Id. at 1656. The injury immediately disrupted her ability to move her neck, carry objects, bathe, wash her hair, and reach overhead and behind her back with her right arm. Id. at 995, 1656. Weeks after sustaining the injury, Jones underwent multiple MRIs. An MRI of Jones's spine revealed that she had one disc herniation and two disc bulges. Id. at 452. A separate MRI of her right shoulder revealed tendinopathy, as well as tendon and labrum tears in her rotator cuff. Id.
Jones's pain and functional limitations persisted, despite several treatment attempts. She tried physical therapy, acupuncture, cortisone shots, and over-the-counter pain relievers. Id. at 56, 487. She also underwent two cervical medial branch block procedures and one cervical radiofrequency ablation procedure. Id. at 1654. While these interventions provided some pain relief, none fully resolved her symptoms. Id. at 509. After exhausting other treatment options, Dr. Gabriel Dassa, D.O., performed arthroscopic surgery on Jones's right shoulder on April 23, 2021. Id. at 635.
On four separate occasions following Jones's surgery, various physicians measured her right shoulder's range of movement. SSA consultative physician Manuel Paz, M.D., measured Jones's right shoulder movement on June 23, 2021; Jones's surgeon, Dr. Dassa, measured her shoulder movement at follow-up appointments on July 22, 2021, and February 24, 2022; and SSA consultative physician Dr. Guttman measured Jones's right shoulder movement on August 31, 2021. Id. at 967, 974, 978, 1641. The measurements from those four evaluations are shown below in Table 1.
Table 1: Jones's Physician-Measured Right Shoulder Movement (in Degrees)
Range of Motion
June 23, 2021 (Dr. Paz)
July 22, 2021 (Dr. Dassa)
Aug. 31, 2021 (Dr. Guttman)
Feb. 24, 2022 (Dr. Dassa)
Flexion
170-180
Not Recorded (“NR”)
155
180
150
Abduction
170-180
90
150
160
150
Internal Rotation
60-70
20
45
60
40
External Rotation
80-90
45
70
80
70
Extension
30-60
NR
20
60
10
Adduction
40
15
30
NR
20
The normal ranges of motion provided by Dr. Dassa and Dr. Guttman differ slightly, and Dr. Paz provided no normal range. Because Dr. Dassa and Dr. Guttman provided different ranges, the “Normal Range” values in Table 1 represent the numbers provided by both doctors. The lower end (e.g., 170 degrees for flexion) represents the normal range of motion provided by Dr. Dassa. R. 1641. The higher end (e.g., 180 degrees for flexion) represents the normal range of motion provided by Dr. Guttman. Id. at 978.
At Dr. Paz's June 23, 2021 evaluation, he opined that Jones had “marked limitations for heavy lifting, carrying, pushing, pulling, and reaching overhead with the right shoulder.” Id. at 968. Similarly, at Dr. Guttman's August 31, 2021 evaluation, he noted that Jones “cannot lift more than 25 pounds and cannot do any overhead lifting.” Id. at 979. Dr. Guttman also noted that “impingement and cuff tear signs were not present” and that Jones could “perform all activities of daily living including working with the above restrictions.” Id. At Jones's February 2022 follow-up appointment with Dr. Dassa, she told him that she “continue[d] to have maintained improvement in her shoulder,” but she presented with a more limited range of shoulder movement than at her previous two measurements. Id. at 1641; see Table 1.
Following her shoulder surgery, Jones regularly attended physical therapy. At those appointments, Jones's physical therapist measured her right shoulder movement. Those measurements, shown in Table 2, demonstrate that Jones's right shoulder movement steadily improved following her surgery. By February 9, 2022, all of Jones's shoulder movements were either normal or nearly normal. Id. at 1639. At a physical therapy appointment on June 21, 2021, while still recovering from shoulder surgery and while experiencing very limited right shoulder movement, Jones told her physical therapist that she was able to “do reaching activities with ease.” Id. at 1131.
Table 2: Jones's Physical Therapist-Measured Right Shoulder Movement (in Degrees)
| Range of Motion | Normal | May 11, 2021, through June 21, 2021 | June 22, 2021, through Oct. 7,2021 | Oct. 12, 2021, through Feb. 8, 2022 | Feb. 9, 2022 |
| Flexion | 180 | 80 | 128 | 165 | 170 |
| Abduction | 180 | 70 | 100 | 165 | 170 |
| Internal Rotation | 70 | 40 | 45 | 50 | Normal |
| External Rotation | 90 | 30 | 35 | Normal | Normal |
| Extension | 60 | 30 | 33 | NR | NR |
The normal ranges in Table 2 are provided by Jones's physical therapist. R. 1620.
IV. The ALJ's Decision
At step one, the ALJ determined that Jones had not engaged in any substantial gainful activity since June 29, 2020, the date of her workplace injury. R. 19.
At step two, the ALJ found that, from June 29, 2020, through August 31, 2021, Jones had the following severe impairments: “status post right arthroscopic surgery for rotator cuff injury; right shoulder degenerative joint disease; right shoulder tendinopathy; multilevel cervical degenerative disc disease; obesity; bipolar depressive disorder; anxiety disorder; post-traumatic stress disorder (PTSD); and intermittent explosive personality disorder.” Id. at 19.